Two undertakings that were subject to investigatory searches by the Competition Authority have complained of the mass undifferentiated seizure of their electronic mailboxes. The mailboxes contained items unrelated to the investigation, including personal and private emails and correspondence with the undertakings’ lawyers.

According to the Competition Authority, the current state of IT techniques and the constraints inherent in the search and seizure procedure allow for only the entire contents of company electronic mailboxes to be seized. The authority held that attempting to extract only certain elements would paralyse the investigation for weeks and would affect the integrity of the data extracted.(1) The mere fact that the mailboxes contained certain elements that might be used as evidence of the alleged actions was justification for their integral seizure. The first president of the Paris Court of Appeal confirmed this view, finding in the first case(2) that the administrative authorities had convincingly dispelled the arguments put forward by the expert engaged by the undertakings, who had attempted to demonstrate that it was possible to extract only certain items from mailboxes. The Court of Cassation recently upheld the principle of the seizure of the entire contents of a mailbox on the basis that its items allegedly cannot be seized separately, and considered that the court which reviewed the operations had not been required to appoint experts to find alternative techniques for the seizure of such documents.(3)